Opinion
NO. 2016-CA-000955-MR
01-19-2018
BRIAN CARTER, INDIVIDUALLY, AND CARTER REALTY & ASSOCIATES APPELLANTS v. CITY OF HAZARD, KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Ned Barry Pillersdorf Prestonsburg, Kentucky BRIEF FOR APPELLEE: Paul R. Collins Hazard, Kentucky Jonathan C. Shaw Paintsville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PERRY CIRCUIT COURT
HONORABLE ALISON C. WELLS, JUDGE
ACTION NO. 16-CI-00020 OPINION AND ORDER
DISMISSING AND REMANDING
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BEFORE: ACREE, DIXON AND NICKELL, JUDGES. DIXON, JUDGE: Appellants, Brian Carter, individually, and Carter Realty & Associates ("collectively Carter"), appeal from an order of the Perry Circuit Court granting, in part, Appellee, the City of Hazard's (City), motion to dismiss for failure to exhaust administrative remedies. For the reasons set forth herein, we dismiss this appeal and remand the matter to the trial court.
This appeal arises out of a fire that occurred on September 1, 2015, in a multi-story residential and commercial building known as the Grand Hotel Mini Mall, owned by Carter and located in downtown Hazard, Kentucky. The fire caused severe damage to the premises and resulted in the closure of Main Street in the vicinity of the building due to perceived danger to life, health, property or safety to the public. On September 14, 2015, the City's Office of Zoning, Buildings and Permits sent a correspondence to Carter outlining the applicable provisions of local ordinances referencing and incorporating the BOCA National Property and Maintenance Code. The correspondence outlined certain remedial measures that Carter was required to undertake, as well as advised him that all orders of the City's Building Inspector were subject to appeal to the Board of Appeals created in the Hazard Code of Ordinances, Chapter 150.010 et seq.
Following the initial September 14, 2015 letter, a long series of verbal and written communications between the City and Carter took place as the parties were not in agreement with regard to how the structure should be braced in order to prevent collapse and how to remove the debris from the building once it was safe to enter the structure. Sometime at the beginning of October, Carter undertook to begin removal of debris without adequate safety equipment in place and before there was an approved demolition plan and permit. As a result, on October 12, 2015, the City's building inspector issued a cease and desist order. Thereafter, the building inspector notified Carter that because there were structural problems and the existence of hazardous waste on the premises, and because the submitted plan to brace the front wall of the structure would impact the flow of traffic on Main Street, Carter's plan was disapproved. Accordingly, the building inspector ordered Carter to submit a written plan for demolition of the building. After Carter failed to submit a plan, the City notified him on October 28, 2015, of its intent to develop and implement its own plan for demolition of the premises.
On January 13, 2016, Carter filed an action in the Perry Circuit Court seeking a declaration that he was entitled to proceed under his own plan to rehabilitate the structure, as well as a writ of mandamus directing the City to issue him the necessary permit. Carter subsequently filed an amended complaint on January 29, 2016, seeking compensatory damages due to the City's delay and interference in issuing a permit.
The City proceeded with its own demolition efforts and, after removing the damaged portion of the building, released the premises back to Carter on March 8, 2016. In the interim, however, on March 2, 2016, the City filed a motion to dismiss based upon Carter's failure to exhaust administrative remedies prior to initiating legal action. Thereafter, on March 15, 2016, Carter filed a second amended complaint adding claims for inverse condemnation and trespass, and seeking damages for the City's partial demolition of the building.
By order entered June 6, 2016, the trial court granted, in part, the City's motion and dismissed Carter's claims set forth in the original and first amended complaints based upon his failure to exhaust administrative remedies. Therein the trial court found, in relevant part,
6. Section 150.020 of the Hazard Code of Ordinances makes provision for any appeals from the decisions of the Building Inspector involving code enforcement and states specifically:
(A)Application for appeal. Any person affected by a notice, or decision of the Building Inspector or other code official under the Kentucky Building Code, the Kentucky Residential Code or the BOCA National Property Maintenance Code, shall have the right to appeal to the Board of Appeals, provided that a written application for appeal is filed within 20 days after the day the decision, notice, or order was served. An application for appeal shall be based on a claim that the true intent of this code or the rules legally adopted thereunder have been incorrectly interpreted, the provisions of this code do not fully apply, or the requirements of this code are adequately satisfied by other means.
. . .
13. At no time during any of the communications and correspondence of the parties did Mr. Carter or Carter Realty submit any appeal, written or otherwise, of an order or directive of the Building Inspector to the Board of Appeals pursuant to the provisions of Chapter 150 of the Hazard Code of Ordinances. During a hearing held March 11, 2016 regarding the Defendant's Motion to Dismiss, the Plaintiff sought to avoid dismissal for failure to exhaust administrative remedies by representing to the Court that there had, in fact, been a request made by email for an administrative hearing on appeal. The Court gave Plaintiff ten (10) days to locate and produce such a copy of the request for hearing and to file a supplemental response. No request for an administrative appeal to the Board of Appeals was thereafter produced by the Plaintiffs, and none appears in the record.
14. To date, Plaintiff has failed to avail himself of the administrative appeals procedure available under the City of
Hazard ordinances and has not appealed any determinations to that administrative body. The record reflects that Plaintiff met with and had conversations with Dan Roll, Building Inspector from time to time, and both Plaintiffs and their attorney met with Mr. Roll, the City Manager and the Mayor and City Attorney on one occasion. None of the parties for the City that Plaintiff met with are members of the Board of Appeals which is comprised of five design professionals as specified in Section 150.020(B). Actual hearings before the Board of Appeals are on an administrative record, witnesses are called and heard and a stenographic record may be made. These meetings were clearly not a "hearing" conducted pursuant to Chapter 150 of the Hazard Code.However, the trial court denied the City's motion to dismiss with respect to Carter's claims for inverse condemnation and trespass. The trial court's order contained the language, "This judgment is a final and appealable order of the Court, there being no just cause for delay." Carter thereafter appealed to this Court as a matter of right.
. . .
20. Once the Motion to Dismiss was filed, it was the Plaintiff's burden to come forward in response with affirmative evidence indicating that available administrative remedies were exhausted, and he has simply failed to produce any evidence whatsoever to controvert the Motion to Dismiss.
As a procedural matter, Carter has filed a motion in this Court to remand the matter to the trial court. Therein, he claims that during the appellate prehearing conference, he was advised that it was the opinion of the prehearing attorney that the trial court's order was not properly appealed because there remain unresolved issues in the trial court, rendering the appeal interlocutory. The City, on the other hand, responds that this appeal is proper because the order contains the proper CR 54.02 finality language and that the issues are severable. The City further argues that even if interlocutory, this Court should still consider the appeal and resolve all issues, even the inverse condemnation and trespass claims that were not considered by the trial court.
As a general rule, an appeal may only be taken from a final judgment or order. CR 54.01. Pursuant to CR 54.01, a final and appealable judgment adjudicates all the rights of all the parties or is made final by inclusion of finality language in limited circumstances under CR 54.02. Hook v. Hook, 563 S.W.2d 716, 717 (Ky. 1978). Under CR 54.02(1), if more than one claim for relief is sought, "the court may grant a final judgment upon one or more but less than all of the claims or parties only upon a determination that there is no just reason for delay."
However, if an order is interlocutory by its very nature, the recital of the CR 54.02 finality language will not make it appealable. Hook v. Hook, 563 S.W.2d at 717. It is well-settled that "[a]n interlocutory order is not appealable unless it divests a party of a right in such a manner as to remove from the court the power to return the parties to their original condition." Druen v. Miller, 357 S.W.3d 547, 549 (Ky. App. 2011). See also Ratliff v. Fiscal Court of Caldwell County, Kentucky, 617 S.W.2d 36, 39 (Ky. 1981). "The Court of Appeals has jurisdiction to review interlocutory orders of the Circuit Court in civil cases, but only as authorized by rules promulgated by the Supreme Court." KRS 22A.020(2). One such instance in which we have jurisdiction to consider an interlocutory order is "an order denying a substantial claim of absolute immunity . . . even in the absence of a final judgment." Breathitt County Board of Education v. Prater, 292 S.W.3d 883, 887 (Ky. 2009).
The City concedes that Carter's attack upon the administrative proceedings of the City and his inverse condemnation and trespass claims arise from the same set of facts. We are of the opinion that there remains a substantial question as to whether Carter's failure to exhaust administrative remedies precludes him from pursuing claims for inverse condemnation and trespass, as well as whether his failure to exhaust administrative remedies permitted the City to enter onto his property and demolish a portion thereof. Certainly, the issues of exhaustion of remedies, the City's authority to enter the property, and the measure of damages, if any, are intertwined. As such, regardless of the inclusion of the CR 54.02 recitations, we conclude that the trial court's order is interlocutory and not subject to appeal at this time.
For the reasons set forth herein, this appeal is dismissed and the matter is remanded to the trial court for resolution of the remaining issues.
ALL CONCUR. ENTERED: January 19, 2018
/s/ Donna Dixon
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: Ned Barry Pillersdorf
Prestonsburg, Kentucky BRIEF FOR APPELLEE: Paul R. Collins
Hazard, Kentucky Jonathan C. Shaw
Paintsville, Kentucky